Ayscue v. N. C. State Highway Commission , 270 N.C. 100 ( 1967 )

153 S.E.2d 823 (1967) 270 N.C. 100

Bryant B. AYSCUE, Administrator of the Estate of Francis Larry Ayscue, Deceased
v.
N.C. STATE HIGHWAY COMMISSION.

No. 452.

Supreme Court of North Carolina.

April 12, 1967.

Perry, Kittrell, Blackburn & Blackburn, Henderson, for plaintiff appellant.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harrison Lewis and Staff Atty. Fred P. Parker III, Raleigh, for defendant appellee.

PER CURIAM.

No action, or other proceeding, may be maintained against the State Highway Commission to recover damages for death or other injury caused by its negligence or other tort, except insofar as that right is conferred by the Tort Claims Act. Teer Co. v. North Carolina Highway Commission, 265 N.C. 1, 9, 143 S.E.2d 247. That act provides that the Industrial Commission shall determine whether such claim arose as the result of "a negligent act" of an officer, employee, involuntary servant or agent of the State under circumstances such that if the State were a private person it would be liable to the claimant. G.S. § 143-291. The act permits recovery only for negligent acts of employees of the Highway Commission, not for their negligent omissions or failures to act. Wrape v. North Carolina Highway Commission, 263 N.C. 499, 139 S.E.2d 570; Flynn v. North Carolina Highway Commission, 244 N.C. 617, 94 S.E.2d 571.

It is necessary to recovery that the affidavit filed in support of the claim and the evidence offered before the Commission identify the employee alleged to have been negligent and set forth the specific act or acts of negligence relied upon. Floyd v. North Carolina Highway Commission, 241 N.C. 461, 85 S.E.2d 703. The affidavit filed with the Commission in this instance does not comply with either of these requirements. It alleges that J. B. Harris is the defendant's road maintenance supervisor for Vance County, but it does not allege any act done by him and there is no evidence of any act by this employee.

The plaintiff's evidence shows that the gravel was not placed upon the intersection by any employee of the defendant. The failure of the defendant's employees to remove it cannot be basis for an award under the Tort Claims Act. The Industrial Commission found as a fact that, "There was no negligent act on the part of a named employee of defendant." There is no evidence in the record to support a contrary finding. Therefore, the record would not support an order for the payment of damages to the plaintiff.

It is not necessary to consider exceptions by the plaintiff to the exclusion of evidence offered by him since, had all of this evidence been admitted, it would not have supplied any proof of the above mentioned prerequisite to a right of recovery in the plaintiff.

There is no evidence in the record which would support a finding of negligent construction of either of these roads, as the plaintiff contends in his brief. The mere showing that gravel accumulated upon the intersection is not evidence of negligent construction.

Affirmed.